I have represented clients at a lot of criminal trials and I cannot begin to imagine a lawyer dozing off for 5 minutes.  The ear-bashing that you would get from the judge would keep you awake for days. 

I have represented clients at a lot of criminal trials and I cannot begin to imagine a lawyer dozing off for 5 minutes.  The ear-bashing that you would get from the judge would keep you awake for days. 

Dear Kirk:

This is an issue I have researched in detail (besides oncology, I do some work in International Law), and here are both my  thoughts, and the latest authoritative findings of relevance:

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"SLEEPING LAWYER" DEFENSE

A recent decision by the United States Court of Appeals (Murray v. Shriro D.C. No. 2:03-CV-00775-DGC) gives us a look into what can happen if your attorney dozes off during the course of a trial: in essence, the holding is that an attorney may be allowed to fall asleep during a trial BUT cannot miss “substantial points” of the trial. However, it is typically required for reversal that there is a demonstration that the inattention would have made a material difference to the outcome of the trial, as held by the Supreme Court in 2002 in turning down appeal of a notorious "sleeping lawyer" case, Cockrell v. Burdine, No. 01-495, in Texas.

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NEW INTERPRETATION: PRESUMPTION OF IMPACT ON OUTCOME

However, this issue was revisited - and significantly expanded - most recently in the 2016 case of UNITED STATES v RAGIN (4th Cir. Mar. 11, 2016), where despite the  fact that the Sixth Amendment guarantees criminal defendants the right to assistance of counsel, and that showing ineffective assistance usually means proving (1) the lawyer’s performance was deficient and (2) it actually made a difference of outcome at trial, this court held that if the record shows the lawyer was unconscious for a “substantial portion”of the trial, that’s all that is required to prove inefficacy of counsel: The court will PRESUME the that  substantial unconsciousness made a difference.

I tip my hat to the decision, which is landmark: four other Circuits have considered the "sleeping lawyer" issue and ALL agreed that prejudice (to outcome) must be presumed:

“when counsel sleeps either through a ‘substantial portion'” of trial “or at a critical time during trial”

such inattention or slumber is PRESUMPTIVE of effecting a material and adverse difference to outcome. And this in turn is sufficient to be entitled to new trial.  What's critical here - as opposed to the original narrow ruling [Strickland v. Washington, 466 U.S. 668 (1984) and United States v. Cronic, 466 U.S. 648 (1984)] - is that NO separate showing of prejudice is necessary, AND that such behavior is sufficient to constitute a "STRUCTURAL ERROR" in the trial, as the court held, triggering necessity of a new trial (in agrrement with several other circuit rulings: Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011); Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc)).

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THE CHALLENGE POSED BY KIRK MacGREGOR

Kirk sets the challenge as to whether a duration of slumber of 5 minutes should prove sufficient for a new trial. 

Although it is highly unlikely that such interval rises to the bar, nonetheless this cannot be excluded as a possibility.

Why? Because here's what the US v Ragin Court held as to determination of sufficiency:

"Whether a lawyer slept for a substantial portion of the trial should be determined on a case-by-case basis, considering, but not limited to, the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through. At the same time, however, while we decline to dictate precise parameters for what must necessarily be a case-by-case assessment, we caution district courts that the scope of our holding today should NOT be limited to only the most egregious instances of attorney slumber. "

TAKEAWAY LESSONS:

1.    Instances of attorney slumber that are not "egregious" may still trigger an ineffective counsel defense.

2.    Considerations of length of slumber must be modulated by the significance of the portion counsel slept through.

So although 5 minutes inattention MAY be improbable cause for an ineffective counsel defense, nonetheless this is NOT NECESSARILY So, as it  may still be - unlikely, but possible - inattention through some particularly critical part of the proceedings, from which the consequence of that inattention was not otherwise recoverable during the remainder of the trial. The RAGIN verdict makes it clear that such short duration CANNOT IPSO FACTO be presumed to be immaterial to outcome.  That must be established by the per-case facts.

I would hold that this is a rare and sage judgment that need determine such cases hereafter, against the widely perceived but erroneous assumption made to date.

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Constantine Kaniklidis

Scholars for Peace in the Middle East (SPME)

Oncology Researcher

If an attorney dozed off during a trial two issues are raised.

1. Did that period of sleep affect the totalilty of the outcome of the proceedings? 

2. Does it represent an attitude of that particular attorney to the importance of the trial and the defendant's welfare?

In case one, obviously the trial must be reheard.  In case two the case should be subject to full appeal and examination of the attorney's competance in all aspects of the preparation of the defence and scrutiny of the prosecution evidence should be meticulously investigated.  It should be noted that 'falling asleep' can occur not only during the trial itself but when the crucial prosecution evidence is being analysed.

I have seen a number of cases where crucial errors in prosecution evidence have not been picked up by the defence and have subsequently not been available to the jury.  This is in fact the most common failing of autoptic evidence.  It is all very well collecting and collating it but missing its significance through incompetence can defeat any or all forensic science.     

If an attorney fell asleep during prosecution's evidence in chief and examination in chief it must lead to a conclusion of a mistrial.  If an attorney was not listening at that stage then such negligence should result in a questionable verdict.   

In all cases of attorneys falling asleep during the trial, be they prosecution or defence they should be reprimanded in court, savaged in the press, reported to the bar and removed from the roll.   

It seems that the question is directed to expose that the cause of the result of the trial was fault of the defense. Another question might arise: whether or not the defense fell asleep?

Just as it is known that some criminals do not take responsibility for their acts hiding behind a fictitious psychological symptomatology also lawyers have their tricks.

But, being honest, five minutes of sleep do not go unnoticed.

Jorge Eliecer Hernandez Hernandez is spot on. If a trial is going badly for the defence, it's certainly possible that a sneaky defence lawyer might fake sleep in order to compromise the process. And a very sneaky defence lawyer might be able to pull this off in a way that minimizes his own culpability, e.g. by colluding with a sneaky doctor. Whether sleep goes unnoticed by the judge at the time could, ironically, depend on whether the judge's attention is fixed on a riveting prosecutorial performance.  

In Australia there was a case that went all the way to our Highest Court (Cesan v The Queen [2008] HCA 52) where it was argued that as the judge fell asleep during the trial there was a miscarriage of justice. The opposing argument was that the jury were the finders of fact (not the judge) and as such it could not be said that the accused did not receive a fair trial. However, ultimately the Court determine whether practically the fact that the judge was asleep impacted on the fairness of the trial - and in this case it did (largely because of the judge's snoring). So the long and the short of this analysis seems to be in line with what is said above - that is, what is the outcome on the trial. It would seem to me that there is much more likelihood that an advocate falling asleep would potentially have a much more significant impact than a judge.